AUSTRALIAN UNIVERSITIES REVIEW

Strategies to protect academic freedom

George Williams

Last year’s sedition laws were the latest and most contro- versial instalment in a raft of legislation since the war on terror was announced five years ago. George Williams argues that, while some security measures were necessary, the recent laws have far exceeded the modest scale of the threats that confront us.

In this article I take a step back from the array of laws that Indeed, Christopher Michaelsen at the Strategic and Defence have been enacted in after September 11. My aim is Studies Centre at the Australian National University has con- to explore some of the strategies that might be employed to cluded that the actual risk of a terrorist attack on Australian protect academic freedom. At the outset, we should recognise soil is ‘rather low’. After assessing the available evidence, he just how much the legal and political landscape has changed. found that “a large-scale terrorism attack in Australia appears We need to be realistic about where governments and the to be unlikely because of the country’s geographical isolation community now stand on issues such as national security and and its effective system of border and immigration control”. fair comment. What was the accepted wisdom just a few years Nevertheless, Dennis Richardson, the Director-General of ago may not hold sway today, and we need to account for this the Australian Security Intelligence Organisation (ASIO), said in our thinking. in April 2004: “we now know that al-Qaida had an active inter- My approach is very much shaped by my background as est in carrying out a terrorist attack in Australia well before an Australian public lawyer. After September 11, I supported 11 September and that we remain a target”. This concern is new laws. The threat of terrorism requires a legal response reflected in the Government’s 2004 white paper Transna- to signal our society’s rejection of such forms of violence and tional Terrorism: The Threat to Australia. also to ensure that our police and other agencies have the Such statements must be seen in light of the Government’s powers they need to protect the community. However, such publicly available information at the Australian National Secu- laws must be proportionate to the threat that we face. We rity website, which was created to inform Australians of the should not damage our democracy and fundamental civil lib- threat and what is being done to meet it. It says: “There is pres- erties in the name of defending them against terrorism. This ently no known specific threat to Australia.” It also contains analytical approach would also support the protection of a four-level alert system (Low, Medium, High and Extreme) values such as academic freedom. that assesses Australia as being at a Medium level of alert. The Before thinking further about what strategies we might system was particularly unhelpful in defining a ‘Medium’ level adopt, I want to assert an important caveat: any attempt to ‘bal- of alert to be a “medium risk of a terrorist attack in Australia”, ance’ the imperatives of national security and human rights although this has now been changed to a slightly more useful is hampered by the fact that our knowledge of the degree of definition stating that a “terrorist attack could occur”. The threat actually faced by Australia is extremely limited. We are national level of alert has been at Medium since September dealing with a faceless and unknown threat encapsulated in 2001. The website states: “The Government acts on the advice the idea that we are now engaged in a ‘war on terror’. of its intelligence agencies, and should any information come Australia might seem an unlikely target for a terrorist attack. to light which causes the Government to change the assessed

Strategies to protect academic freedom, George Williams vol 48, no 2, 2006 15 AUSTRALIAN UNIVERSITIES REVIEW

level of threat, the public will be advised immediately.” This year jail term for speaking about or reporting on the detention threat assessment is at odds with community fears. One of a person by ASIO, including where that person has been Newspoll conducted for Sydney’s Daily Telegraph in April mistreated. Another example is that non-suspect Australians 2004 found that 68% of adults (more than two thirds) agreed can be detained at the behest of ASIO for one week, whereas that terrorists would strike “before too long” and that a terror- actual suspects could (at least at that time) only be held by ist attack in Australia is inevitable. police for 24 hours before being charged. Indeed, it even Australia’s new laws and our response to them must be seems possible that the current three-year sunset clause on viewed both in the light of what we know about the threat to these ASIO powers will be removed and these exceptional Australia as well as community fear of an attack. Even though powers made a permanent part of the law. there has been no attack on Australian soil and the Govern- One reason for these outcomes is that, even though our ment’s own assessment is that there is “no known specific political system has many strengths, it also has a key weak- threat to Australia”, the community belief in the inevitability ness. Parliament often proceeds without an understanding of a terrorist attack propels law reform forward in ways that of human rights principles, in part because human rights can had been unthinkable. lack legitimacy in political debate. The ineffectiveness of such principles may be attributed in part to the fact that they have How can academics respond? little legal force in Australia. Unlike many other democracies, Australia must search for answers to fundamental questions The way in which Australia has dealt with the issues of law about civil liberties and national security without the benefit and policy raised by the ‘war of terror’ since 2001 suggests of a Bill of Rights. two important lessons that should inform our strategies for As other nations have shown, a Bill of Rights does not form protecting academic freedom. First, at least up to 1 July 2005 an impenetrable barrier to bad laws. However, it can be espe- – the time that the federal Government gained control of the cially important when, as after September 11, new laws are Senate, in addition to its control of the lower house – Austral- made and old laws amended with great haste in response to ian political institutions played an important role in achieving community fear. At such a time, legal systems, and the basic the right balance between national security and human rights. principles that underlie them, such as the rule of law and the Despite the stringent nature of some of the laws as enacted, liberty of the individual, can come under considerable strain. the original bills were far worse. At such a time a Bill of Rights can remind governments and The content of those original bills was not enacted because communities of a society’s basic values and of the principles they sparked a well-organised campaign led by a range of that might otherwise be compromised at a time of grief and fear. community and legal groups and individuals. The concerns After new laws have been made, a Bill of Rights can also allow of these groups and individuals fed into the robust scrutiny courts to assess the changes against an established framework provided by the two parliamentary committees that examined of human rights principles. This provides a final check on laws the bills and produced bipartisan reports recommending sub- that, with the benefit of hindsight, may be inappropriate. stantial changes. In many, but not all, respects those recom- In Australia, there may occasionally be a role for judges in mendations were implemented in the legislation. assessing new terrorism laws, but this will usually be at the mar- The bottom line is that, without this parliamentary process, gins of the debate, such as where constitutional provisions are the balance struck between the protection of national secu- relevant to human rights enforcement or in the interpretation rity and the protection of civil liberties would have been dis- of legislation. However, Parliament can depart from fundamen- proportionately tipped even further toward the former, to the tal rights by passing a law that operates within constitutional great detriment of the latter. Indeed, even Prime Minister John limits and is clear in its intent, and judges have no recourse to Howard was moved to say in his National Press Club Address other principles that might militate against gross incursions on the first anniversary of the September 11 attack that upon civil liberties. For example, the High Court held in 2004 “through the great parliamentary processes that this country in the case of Al-Kateb v Godwin that it was possible to pass a has I believe that we have got the balance right”. law for the indefinite detention of asylum-seekers. The second lesson is found in the recognition of the limited The lack of a legal check means that political and legal and arguably insufficient capacity of our political institutions debate in the ‘war on terror’ is largely unconstrained by funda- to protect human rights in times of community fear of terror- mental human rights principles. Instead, as was demonstrated ist attacks. Even after a long and difficult parliamentary proc- by the legislation introduced into the federal Parliament after ess that produced significant amendments and compromises, September 11, the contours of debate may match the majori- there are many aspects of the new laws (let alone the propos- tarian pressures of Australian political life rather than the prin- als for further change after 1 July 2005) that go far beyond ciples and values upon which the democratic system depends. what can be justified. These include the imposition of a five Any check upon the power of Parliament or governments to

16 vol 48, no 2, 2006 Strategies to protect academic freedom AUSTRALIAN UNIVERSITIES REVIEW

abrogate human rights derives from political debate itself and the world, Australia is now unique in not having a solid legal the goodwill of political leaders. This is not a check that is basis for the protection of basic rights like freedom of expres- regarded as acceptable or sufficient in other nations. sion, a vital foundation for the long term future of ideals like academic freedom. Strategies Those working in academia have particular advantages in supporting such change. Academics often have the capacity The Australian experience since September 11 demonstrates to see beyond the immediate pressures of the day and politi- that even the most basic rights of Australians are vulnerable. cal cycle and thus beyond what is so often a politically driven Moreover, in light of the new sedition laws recently enacted by response to the threat of terrorism or a terrorist attack. Aca- the Federal Government, which represent an affront to basic demics often have the capacity, and intellectual space, to take principles of the freedom of speech, the chances of securing a more analytical, long term perspective. Such a view is vital, protection for what are seen as subsidiary civil liberties, such especially in dealing with a threat such as terrorism that no as academic freedom, are low indeed. Recent history also government can solve in its own lifetime. shows how rights can be picked off one by one in the name It might be said that universities and their staff lack the of the ‘war on terror.’ It is easier, it seems, to make such accom- political or other power to have their way. However, they do modations in a step by step fashion. have another major advantage. They are often the custodians In this light we must employ two different approaches for of ideas, like the concept of universal human rights, which the protection of civil liberties in general, and academic free- have the potential to be ascendant over the longer term. We dom in particular. The first is to accept the political and legal need to remember the long term potential of ideas and our terrain as we find it and to seek to bring about changes, almost responsibility to promote them. Indeed, our promotion of always at the margins, to specific proposals for new terrorism such ideas and their realisation in the law is a necessary condi- laws. This necessarily reactive approach is the dominant strat- tion for ensuring the long term survival of concepts like aca- egy now adopted. It has met with some success in having laws demic freedom. amended and in some cases has blunted the worst aspects of these laws, such as the changes made to the proposed legisla- George Williams is the Professor and Direc- tive regime regarding the detention of non-suspect citizens tor of the Gilbert + Tobin Centre of Public Law at the Faculty for the purpose of intelligence gathering. However, this reac- of Law, UNSW. He was Chair of the Victorian Human Rights tive approach accepts that that the law will be changed to Consultation Committee that recommended Victoria enact cut back basic rights and values like academic freedom, with a Charter of Human Rights and Responsibilities. the strategy being mainly to contain the damage. It is simply not feasible to deflect entirely the push for change to the law, References the political and other imperatives usually being too strong to Al-Kateb v Godwin 2004, 219 Commonwealth Law Reports 562. resist, especially in the aftermath of any attack. Australian National Security website, www.nationalsecurity.gov.au. The second approach is to seek to change the political and Australian Security Intelligence Organisation Act 1979 (Cwth). legal terrain such that, over the longer term, we might be better Golder, Ben & Williams, George, ‘The Law on Terror: Assessing the able to ensure the protection of fundamental rights. Such Legal Response to September 11’, Journal of Comparative Policy Studies reform could consist of an Australian Bill of Rights. This longer 8 (2006) 43. term approach should form part of any strategy to protect Howard, John, Address to the National Press Club, , 11 Sep- academic freedom in Australia. The long term survival of con- tember 2002. www.pm.gov.au/news/speeches/2002/speech1848.htm. cepts like academic freedom is dependent on the outcomes of Michaelsen, Christopher, ‘Antiterrorism Legislation in Australia: A Proportionate Response to the Terrorist Threat?’, Studies in Conflict & larger debates about law-making processes in Australia and the Terrorism 28 (2005): 321. absence of a sound human rights framework. Without such a Miranda, Charles, ‘Defiant in the Face of Terror.’ Daily Telegraph, 21 framework, our capacity to fight for the protection of specific April 2004, p.1. freedoms is severely limited. Richardson, Dennis, ‘ASIO Today’, Australian Institute of Administrative Law Quarterly Forum 41 (2004): 25. My view then is that one of the ways forward in the fight to protect academic freedom is to argue for change to the Australian Government White Paper, 2004, Transnational Terrorism: The Threat to Australia. political and legal system. Academic freedom cannot be sepa- Williams, George 2004, The Case for an Australian Bill of Rights: Free- rated from this larger debate. Lest this be seen as an impos- dom in the War on Terror. University of New South Wales Press, Sydney. sibility, new human rights frameworks has been achieved, to Williams, George, ‘The Rule of Law and the Regulation of Terrorism in varying degrees of success, in other comparable nations over Australia and New Zealand,’ in Global Anti-Terrorism Law and Policy. Edited by Victor Ramraj, Michael Hor and Kent Roach. Cambridge Uni- the last quarter century, including Canada, New Zealand and versity Press, Cambridge, 2005. the United Kingdom. Indeed, of all the democratic nations in

George Williams vol 48, no 2, 2006 17